from the birthday-bust dept

This week, we got a lot of reactions to the huge (but not necessarily surprising) discovery of evidence showing that Happy Birthday has been in the public domain for nearly a century. There was a general agreement that this whole situation is insane, but one specific suggestion that it was "petty" and "a waste of taxpayers money" garnered a push-back from PaulT that won most insightful comment of the week:

A sign that the system is broken? Yes. A petty dispute? I don't call the fact that a private company is hoarding rights to a song that should have been in the public domain decades ago to the tune of $2 million/year petty. If the song is public domain, they are making huge levels of income based on a lie.

A waste of taxpayer money? Again, I don't see how returning the public's property to its rightful owners under the original contract is a waste, especially if this results in a wider discussion of how broken and one-sided the copyright system is. Especially if as a result of this, Warner are found to have been misleading enough to be forced to return its ill-gotten gains and other companies are forced to return public domain properties to their rightful owners. OK, that's unlikely, but I can dream.

It's a silly dispute in that it should never have been allowed to come to this, but since we're here it's a good fight to have.

Meanwhile, we were quite disturbed by one veteran's story of being on the receiving end of a police raid, and discovering that quite unlike his military training, it is "standard procedure to point guns at suspects in many cases to protect the lives of police officers". That One Guy took second place for insightful by expanding on this extremely worrying contrast:

And they wonder why people don't, and should never, trust them...

The military are taught that guns are dangerous weapons, only to be brought out when you plan on using them, and are willing to accept the consequences of doing so. The police on the other hand are apparently taught to draw guns at the first possible opportunity, and treat them not as deadly tools fully capable of killing someone with a single twitch of a finger, but simply a method of intimidation.

Also, gotta love(or is that 'loathe')that double standard in play.

Police point guns at someone else to 'protect' themselves, even when it's not needed? Perfectly acceptable, and in fact outright desirable.

If someone pointed a gun at a cop in order to 'protect' themselves from a them? Attempted murder, assaulting an officer, whatever charges they can cook up, and assume they aren't gunned down on the spot(not likely), they're almost certain to spend several years in jail for 'attempted murder of an officer'.

That is one of the nastier ideas that has infected 'law enforcement' specifically, and even society in general, the idea that if you break the law, or are even accused of breaking the law, that it means you no longer deserve to be protected by the law. I've even seen people argue this in the comments section on TD, the idea that those that act outside the laws have, by their actions, removed themselves from the protections the laws provide, and no longer deserve any sort of fair or just treatment by the system, because criminal/terrorist.

'Sure we stole a bunch of stuff from someone, without any sort of trial or anything, but look, they're a criminal, that makes it okay!'

This idea however is terrible, as both 'guilty' and innocent both deserve the full protection of the law, otherwise it becomes utterly meaningless. If you can strip away someone's right simply by accusation, or even the finding of guilt, then those protections cease to exist, and are merely optional, to be applied at whim.

Forget about the misleading "never met a pirate you didn't love" cliche intro, or the bullshit notion that anyone is advocating for piracy as a "right"... if your point is that the Authors Guild's efforts against piracy somehow redeem all the pro-publisher activities I discuss in my article, your response is at best awfully tangential.

The whole notion that piracy is a zero-sum game, that someone who downloads a book for free would have paid full price for it if the free download were impossible, is antithetical to common sense and everyday experience. Anti-piracy efforts are emotion driven and ignore logic and evidence.

I say all this, by the way, as an author who is regularly informed by the AG et al that he should be terrified of and enraged by piracy. Yawn.

With all that, you want to rebut my post by talking about how the AG hates piracy? How about a response a little more on-point than that?

Over on the funny side, for first place we return to the Happy Birthday saga, and Warner's obfuscating response. One anonymous commenter couldn't resist a little singalong:

Happy Birthday to sue
Happy Birthday to sue
if it quacks like a duck
we'll sue it like one too

Happy Birthday to me
Happy Birthday to me
I screwed the public domain
and all of you

I'm sure they are singing all the way to the bank... 10M gross @ 2M net for the last 80 years, I could retire on that

For editor's choice on the funny side, we start with an anonymous comment about the hologram rap concert that was shut down because politicians and cops didn't like his lyrics — but it's an idea that could be applied in all sorts of situations:

I think we should follow the Youtube example and make them take a course on the Constitution. After 3 strikes you're no longer allowed to hold office.

Finally, in response to Wordpress taking a stand against abusive DMCA takedowns, we've got someone under the name Mr Big Content providing some extremely deadpan sarcasm:

This is Why We Need Much Stricter Copyright Laws

All this does is put more obstacles in the way of intellectual property owners trying to prevent theft of their intellectual property. Why should intellectual property be a special case, with all these extra hoops to jump through, compared to any other property? It should be treated the same!

It is too much to expect intellectual property owners to bear all the burden of looking after their property. The Internet has a moral obligation to help us. After all, they are the technical experts, what is so hard for us should be childishly easy for them, they just don't want to do the work. Unlike normal property, intellectual property needs to be treated very specially and carefully, with lots of extra legal restrictions, because it so easily gets thefted

from the how-a-bill-becomes-a-law dept

If you pay any sort of ongoing attention to Congress, you're probably familiar with GovTrack, the extremely useful online resource created by Joshua Tauberer in 2004, containing robust info on the status of all the bills that hit the floors of the House and the Senate. It's a fantastic tool, and today we're looking at a crowdfunding push to make it even better by hiring a full-time researcher to add additional context and analysis to the bills and votes being tracked.

The Good

Until very recently, GovTrack was fully automated and had no staff — which is why one man's pet project has been going strong for over a decade without much if anything in the way of revenue. But Joshua knows there's lots more the site could be doing, and recently hired an intern to start testing out a big new addition to GovTrack: researchers who can closely follow the most important bills and dig into them deeper than the algorithms can, providing commentary and analysis plus readable summaries of legislation, and reporting on the underlying political context. To that end, they've also launched GovTrack Insider as a Medium page, which already features a bunch of posts on various important bills and votes from the last few months.

The Kickstarter goal is to upgrade from an intern to a full-time researcher on a six-month contract — or two as a stretch goal. This could really take the already-useful GovTrack to a whole new level.

The Bad

While I don't by any means think this is a bad idea, there are still a few potential pitfalls. The first is that it's not clear how this one-time fundraising goal can/will translate into something ongoing. A researcher can do a whole lot in six months, but the ongoing flow of bills through Congress requires ongoing attention with no end in sight. Will we be looking at another Kickstarter for the next congressional session? Or is there some plan to secure new revenue streams with the expanded GovTrack? Either way, if this project is as useful to people as it's likely to be, some will surely be happy to keep paying.

The other, perhaps more critical, pitfall is politicization. Once you move from automatically tracking raw data to actually writing up summaries and analyses, it's almost inevitable that you'll have to start taking political/ideological sides from time-to-time, no matter how committed you might be to neutrality or objectivity. It might prove very difficult to expand GovTrack in this way without beginning to be seen as an at-least-slightly partisan publication rather than a wholly neutral tool for anyone to use — though, that doesn't mean it's impossible.

The Rewarding

There are some very interesting rewards available for backers of this project (and the choice to link the dollar amounts for the various tiers to important Congress-related numbers is a neat one). At lower levels, backers can get in on webinars and group chats that explore Congressional issues and provide advice on political advocacy, while the higher tiers offer the ability to get custom summaries and analyses written of bills that you choose.

But perhaps the most attractive (or at least the most fun) options are those that take advantage of the research intern's other skill: art. At various tiers, he'll draw you a custom caricature of any Representative or Senator that you choose. No word on if you get to dictate how flattering or unflattering said caricature is, though.

from the don't-let-it-pass dept

A few weeks ago, we wrote about a troubling provision that the Senate Intelligence Committee had inserted into this year's intelligence authorization bill, which would require social networks to report to the government any "terrorist activity" they see on their systems. As we noted, this has all sorts of problems, and seems more designed to (1) generate headlines and (2) chill free speech than do anything useful. Thankfully, Senator Ron Wyden has put a hold on the bill specifically over this provision.

“There is no question that tracking terrorist activity and preventing online terrorist recruitment should be top priorities for law enforcement and intelligence agencies,” Wyden said, in a statement for the record today. “But I haven’t yet heard any law enforcement or intelligence agencies suggest that this provision will actually help catch terrorists, and I take the concerns that have been raised about its breadth and vagueness seriously.”

“Internet companies should not be subject to broad requirements to police the speech of their users,”Wyden continued.

But the issue goes even deeper than that. As Markham Erickson has written, there are significant free speech concerns raised by this provision, in large part because "terrorist activity" is not defined at all. Anywhere. It's just this vague term -- and given that companies may face liability for not reporting "terrorist activity" to the government, you can bet an awful lot of perfectly fine and protected speech is going to get reported. And that's worrisome.

A key problem with Section 603, however, is that the trigger for the reporting mandate is based on the vague and undefined term “terrorist activity.” This term is not a term of art in the US criminal code and arguably goes well beyond criminal activity to speech that is protected under the First Amendment.

Erickson also points out that the comparison that supporters have made of this bill to one that requires companies to report child porn, is that child porn is "per se unlawful and never protected speech" under the US Constitution. But "terrorist activity" is just vague.

The NCMEC reporting obligations, however, relate to images that are per se unlawful and are never protected speech under the US Constitution. A government mandate that an Internet company report facts and circumstances connected to the vague and overbroad term “terrorist activity” certainly would result in overbroad reporting to the government of speech that is protected under the First Amendment.

And, on top of that, this move would give other countries a blueprint for how to demand tech companies hand over information on users:

More troubling, if adopted, the provision would serve as a global template for other countries to impose reporting requirements for activities those jurisdictions deem unlawful. This would be particularly problematic with countries that regulate speech, including political speech, and with authoritarian regimes that would demand that Internet companies police their citizens’ activities.

And, finally, as noted, with such a vague term, and the threat of serious liability, companies are going to be pressured into serious over-reporting:

Section 603 also creates a practical compliance problem. Because no one knows the definition of “terrorist activity,” how does one counsel a client to establish a compliance protocol under the proposal?

Any company would be at risk that if it did not report “terrorist activity,” it could be liable if there were a subsequent event that resulted in loss of life, limb, or property. Likely, this would result in designing a protocol to over-report anything that could be considered “terrorist activity.” Given the massive scale of content shared and created on the Internet daily, this would result in reporting of items that are not likely to be of material concern to public safety and would create a “needle in the haystack” problem for law enforcement. This serves no one’s purposes and adds privacy concerns to the First Amendment concerns noted above.

This creates a perverse incentive for a company to avoid obtaining knowledge of any activity that would trigger the reporting requirement—the exact opposite of what the proponents of the legislation want. Yet, designing such an avoidance protocol is nearly impossible. If even one low-level employee received an over-the-transom email about a “terrorist activity,” knowledge of the activity can be imputed to the entire company – exacerbating the potential liability faced by an Internet company.

Of course, these days, it seems like most in the Senate go by headlines rather than actual understanding of the issues. Hopefully, at least this one time, they'll actually listen to Senator Wyden.

from the you-guys-aren't-getting-it dept

Roughly a year ago, we brought you the very dumb story of the San Diego Comic-Con suing Don Farr Productions, organizers of the Salt Lake City Comic Con, for trademark infringement. If ever there were a classic case of a trademark that had moved into a generic status, "comic-con" and similar iterations would have to be it. There are comic cons everywhere. In the midst of all this, or perhaps because of it, the Salt Lake City Comic Con applied for its own trademark over its name, which, again, ought to have been denied as being too generic in my opinion. The USPTO, in its infinite wisdom, disagreed, granting them the mark as the trademark suit is still going on. You already know what happened next, don't you?

Yup, every other comics convention that uses comic con, the term so generic that everyone effing uses it, is now lining up at the USPTO's door to get their own trademarks.

This week sees the kick-off of this year’s Boston Comic Con. Which seems a good a time as any to register the trademark for the name for “Organizing and conducting conventions, exhibitions, and gatherings for entertainment purposes and in the fields of artwork, animation, comic books, fantasy, gaming, popular culture, science fiction, and television and film” and for “Comic books, commemorative comic books, posters, commemorative posters” and “T-shirts, commemorative T-shirts.”

They are not alone. Rhode Island Comic Con and Kansas Comic Con have also launched trademark bids in the past month. ‘Tis the season… they may be inspired by the attempts and claims of Salt Lake Comic Con. Denver Comic Con also has a trademark registration.

And unless this is stopped tout de suite, there's absolutely no reason to expect that all the other comic cons in all the other cities will be filing their applications soon. Why wouldn't they? The USPTO, in conjunction with a lawsuit over a term that hasn't yet been ruled generic, but should be, have thrown open the door for everyone to get their piece of the generic pie. And the end result of all of this? Tons of billable hours, of course.

They can expect a challenge from Comic-Con International, the organisers of San Diego Comic-Con and WonderCon, who own the trademarks on San Diego Comic-Con, Anaheim Comic-Con, San Francisco Comic-Con and Los Angeles Comic-Con.

Why? Why? Why pay a legal team to spend a ton of time and money fighting for a mark that doesn't threaten you, that has become generic, and that has been employed the entire time your own mega-popular convention has become insanely successful. Why are we doing any of this?

from the urls-we-dig-up dept

The search for extraterrestrial intelligence (SETI) hasn't yielded much, and some of the results are even a bit embarrassing. We don't really know what to look for when we're listening for alien signals. There's growing evidence that planets like ours are not rare in the universe, but that doesn't necessarily mean intelligent life is abundant. Given the vast distances to neighboring star systems, we're also not likely to visit them any time soon.

from the a-little-transparency-please dept

The wonderful Freedom of the Press Foundation is now suing the US Justice Department for refusing to reveal its rules and procedures for spying on journalists. You can read the complaint here. The key issue: what rules and oversight exist for the DOJ when it comes to spying on journalists. As you may recall, a few years ago, it came out that the DOJ had been using some fairly sneaky tricks to spy on journalists, including falsely telling a court that reporter James Rosen was a "co-conspirator" in order to get access to his emails and phone records. In response to a lot of criticism, the DOJ agreed to "revise" its rules for when it snoops on journalists.

There is no change to how the F.B.I. may obtain reporters’ calling records via “national security letters,” which are exempt from the regular guidelines. A Justice spokesman said the device is 'subject to an extensive oversight regime.'

Extensive oversight regime, eh? The Freedom of the Press Foundation sought to find out just what kind of extensive oversight there really was -- and came up against a brick wall in the form of black redaction ink:

That's from the DOJ's Inspector General report, concerning a situation where the FBI had used an NSL to access a journalist's communications inappropriately. As the Freedom of the Press Foundation notes, elsewhere in that same report, it appears that the FBI is actually ignoring recommendations of the Inspector General concerning these situations, despite the "First Amendment interests implicated."

As the Foundation notes, the redactions here make the details entirely opaque, and the Inspector General's Office has made it clear that it disagreed with the redactions, saying that revealing the information behind that black ink "is important to the public's understanding of the FBI's compliance with NSL requirements." Given that the Foundation is now suing to find out those details. The lawsuit specifically requests that the DOJ reveal those documents in their entirety, which includes the "extensive regime, rules, guidelines, or infrastructure that oversees the
issuance of NSLs or exigent letters to obtain records regarding a member
of the media" as well as "the current procedures that FBI agents must undertake in advance of
issuing a NSL or exigent letter to obtain records regarding any member of
the media."

I'm going to go out on a limb here and say that the DOJ will reply, hysterically, that revealing this kind of information will put national security at risk and could reveal important law enforcement gathering techniques that will aid those out to harm us or some such crap. Perhaps they'll even toss in a request to dump the entire case for reasons of "national security." Just recognize that this is all busllshit. The request here is not for any details that are going to help any criminals get away with anything. All it is asking for is what process the FBI uses to make sure that it's not violating the First Amendment in spying on journalists. If that's something that needs to be kept secret, there can be only one reason: because the FBI is embarrassed by what it's doing in spying on journalists.

from the questions-to-ponder dept

It appears that a judge has begun to get a little more curious about copyright troll giant Malibu Media and how it goes about finding "infringers" to shakedown with settlement agreements. In the past, evidence showed that other similar copyright trolls like Prenda, were engaged in seeding their own content, which would make the file authorized, and thus the shakedown letters a form of "copyright misuse." There have long been rumors that Malibu Media, perhaps in association with the infamous "international men of mystery" running the behind-the-scenes operation out of Germany, may be seeding their own files as well.

Now, as Raul points out, it appears that at least one judge is willing to allow discovery on this point in one of the cases, involving Malibu Media against Matt Guastaferro in a Virginia court, and to examine if Malibu Media has "unclean hands" as a result of this:

In this case, Defendant has alleged that Plaintiff's claims are barred by the [unclean hands] doctrine
"as Plaintiff's use of its copyrights violates public policy." ... Such an allegation
does not appear to trigger the doctrine because it says nothing of how Malibu Media
"encouraged, invited, aided, compounded, or fraudulently induced" Defendant's allegedly
wrongful conduct.... Defendant's response to this motion, however, sets forth factual averments that do appear to support his invocation of the doctrine. For instance, he assets that "IPP or another agent of Malibu Media is responsible for initially seeding some of Malibu's content onto BitTorrent in the first place and for facilitating infringing downloads by BitTorrent users" in an attempt "to extract exorbitant sums from individuals for alleged copyright infringement."...

Malibu Media has moved to strike this defense on the basis that he has "not sufficiently
alleged copyright misuse." ... In support thereof, he relies upon a recent
decision of this Court, in which it granted Malibu Media's motion to strike "because Plaintiff
cannot have unclean hands if Defendant did not sufficiently plead copyright misuse." .... The
Court respectfully disagrees with this conclusion and considers the defense one that is better
suited for resolution following discovery. Indeed, the Fourth Circuit did not premise its decision
barring the copyright infringement claim pursuant to the doctrine of unclean hands on an
associated defense of copyright misuse.... Thus, the pleading
requirement that Plaintiff urges here does not appear to exist.

Accordingly, because Plaintiff is on notice of Defendant's allegations that it "seeded"
some of its content onto BitTorrent for the purpose of extracting settlements in the numerous
copyright infringement suits that it has filed, the Court will decline to strike this defense as well.

This may not lead to anything, but it's fairly amazing that courts haven't been digging that deeply into Malibu Media's practices in similar cases.

from the with-friends-like-these dept

With all the revelations that have come out about the NSA and our foreign and domestic spy programs, it can, at times, become difficult to parse out exactly what we're supposed to be getting pissed off about and what is the exact kind of spy-work we ought to expect the alphabet agencies to conduct. Some of the groups that are involved in getting these revelations out there don't make it much easier, of course. Take as an example the latest Wikileaks info-dump, which chiefly concerns the NSA's spy program against our ally Japan. From the press release accompanying the documents:

Today, Friday 31 July 2015, 9am CEST, WikiLeaks publishes "Target Tokyo", 35 Top Secret NSA targets in Japan including the Japanese cabinet and Japanese companies such as Mitsubishi, together with intercepts relating to US-Japan relations, trade negotiations and sensitive climate change strategy. The list indicates that NSA spying on Japanese conglomerates, government officials, ministries and senior advisers extends back at least as far as the first administration of Prime Minister Shinzo Abe, which lasted from September 2006 until September 2007. The telephone interception target list includes the switchboard for the Japanese Cabinet Office; the executive secretary to the Chief Cabinet Secretary Yoshihide Suga; a line described as "Government VIP Line"; numerous officials within the Japanese Central Bank, including Governor Haruhiko Kuroda; the home phone number of at least one Central Bank official; numerous numbers within the Japanese Finance Ministry; the Japanese Minister for Economy, Trade and Industry Yoichi Miyazawa; the Natural Gas Division of Mitsubishi; and the Petroleum Division of Mitsui.

Now, what Wikileaks is doing is mashing together the NSA spying on the Japanese government, our ally, with Japanese industry. That's silly, in my estimation. In fact, much of the hand-wringing that goes on about our spy networks spying on allies seems naive in the extreme, as if to suggest that our closest allies aren't conducting similar spy programs on our government. You can insist, if you like, that America should not be spying on her allies, but then I get to insist that you grow up, because that's exactly the kind of work you want the NSA doing.

But on the economic side, things get a little murkier. The NSA has insisted for years that the agency does not engage in economic espionage, actions which would put it out of the norm for how we treat our allies. It's also been clear for some time that the NSA is full of crap in this regard. This latest Wikileaks dump fleshes out just how much economic espionage we do against our allies, even very close allies like Japan.

The documents demonstrate intimate knowledge of internal Japanese deliberations on such issues as: agricultural imports and trade disputes; negotiating positions in the Doha Round of the World Trade Organization; Japanese technical development plans, climate change policy, nuclear and energy policy and carbon emissions schemes; correspondence with international bodies such as the International Energy Agency (IEA); strategy planning and draft talking points memoranda concerning the management of diplomatic relations with the United States and the European Union; and the content of a confidential Prime Ministerial briefing that took place at Shinzo Abe's official residence.

It's just more egg on the face of government and security officials who have claimed to have kept their hands clean of economic espionage. There's sure to be more of interest in the documents as they get parsed out, but if nothing else we can be reminded that the NSA is a spy agency and that its officials have been caught lying over and over again.

from the will-swift's-statement-look-so-silly-years-later? dept

The music business tends to repeat itself. Conversations that seem completely intertwined with new technologies mirror those over earlier developments. Read Adrian John's Piracy, for example, and see how closely the file-sharing debate followed the one about sheet music a century earlier.

Even with that background, the parallels between Taylor Swift's widely discussedcomments about Apple Music earlier this year and Garth Brooks' outspoken stance on used CD sales are striking. It's hard to argue with Swift—she is, after all, a shrewd businesswoman, and who knows what the future holds -- but the fact that Brooks' fears proved so unfounded takes some of the winds out of her sails. We may be at the end of history, and today's problems might be totally unlike the ones we faced before, but probably not.

I'm sure you are aware that Apple Music will be offering a free 3 month trial to anyone who signs up for the service. I'm not sure you know that Apple Music will not be paying writers, producers, or artists for those three months. I find it to be shocking, disappointing, and completely unlike this historically progressive and generous company.

This is not about me. Thankfully I am on my fifth album and can support myself, my band, crew, and entire management team by playing live shows. This is about the new artist or band that has just released their first single and will not be paid for its success. This is about the young songwriter who just got his or her first cut and thought that the royalties from that would get them out of debt. This is about the producer who works tirelessly to innovate and create, just like the innovators and creators at Apple are pioneering in their field…but will not get paid for a quarter of a year's worth of plays on his or her songs.

Brooks said that because no royalties are paid on the sale of used CDs, writers, labels, publishers and artists were being cheated. He said he would only supply chains that sell used CDs with his cassettes, and hinted that he might be working on another "format" to thwart such sales.

Brooks said he does not need any money, but lesser-known artists could suffer if secondhand CD sales take off. If used CD sales were to go into massive retail, he said, it would severely affect people in the recording industry, creating a sales loop that would profit only stores but not the creators, publishers and artists.

CD retailers, meanwhile, have argued that the cost of new CDs is too high for young buyers, and that selling used CDs exposes an artist's music to different audiences.

For both Swift and Brooks -- each among the best-selling acts of their generation -- an emerging marketplace that makes music more accessible -- but less well-compensated -- was worth speaking out about. They both note that it's not about them, but about the principle, and that the unpaid exposure would hurt new musicians. Both point to the middleman's profits as an obvious evil.

Taylor Swift was, at least narrowly, right. Apple Music should've been paying royalties for its free trials all along. But elsewhere, her skepticism about streaming and business models that include "free" might not be well placed. Unfortunately, because music licensing in this space is fundamentally more of a permissions culture than selling plastic discs was, we may never find out.